Wednesday, July 10, 2019

The Not-So-Fine-Line Between Creative Lawyering And Dishonesty

by Michael C. Dorf
My latest column on Verdict offers some thoughts on the attempted substitution of a new team of lawyers trying to defend the decision of Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 US census. The column speculates along two dimensions. First, I say it is likely that the original team refused to participate further in what they regard as unethical lawyering and thus either quit or were removed. Second, I say that the original team could have objected to further participation along one or both of two grounds: (a) they did not think they could honestly say that the Ross decision was taken for any other reason than to gain partisan advantage by undercounting Democratic-leaning Latinx and other minority communities; and/or (b) they could not tell the court that sufficient time remains to print and distribute census forms with the citizenship question, given their repeated representations that June 30 was a hard deadline.

Here I want to focus on (a). In particular, I want to ask what exactly makes the task that the original Dep't of Justice lawyers might have attempted to decline so different from a task that lawyers routinely perform for clients. Before diving in, I want to acknowledge (as I do in the column) that my assumptions about what is going on within DOJ are necessarily speculative. Even if I'm mistaken about what is happening, however, the points I make here have wider application.

As I explain at greater length in the column and in an earlier piece here on the blog (and cross-posted at TakeCare), last month the SCOTUS invalidated Secretary Ross's addition of the citizenship question on the ground that the reason advanced in defense of it--to acquire citizenship data in order to enforce the Voting Rights Act--was not the actual reason for the Secretary's action. Chief Justice Roberts does not actually say in his opinion what the actual reason was, but everyone knows that the real reason was to gain partisan advantage. That's why I found the remand to the agency curious. How could Commerce possibly generate a new "real" reason for adding the citizenship question, when the Trump administration's real reason has not changed?

One not-unethical path that the DOJ lawyers could take would be to argue that if Commerce swiftly undertakes new final agency action based on some other rationale, the courts would have to blind themselves to everything that came before. However, given how pretext operates in other contexts, that would almost surely be a losing argument. And, in the words of AG Barr, it appears that the administration wants to "clarify the record," which at present sounds like a euphemism for "provide a new pretextual explanation for the addition of the citizenship question." If so, it is wholly understandable that DOJ professionals would balk at participating in what amounts to a violation of the basic duty of candor that bar membership imposes on all attorneys.

And yet, one might ask, don't lawyers routinely provide pretexts for their clients? In a way yes, but as I shall explain, in a more important way, no.

In my experience, even relatively sophisticated clients focus on legally irrelevant issues. Here's a schematic example: The client owns and operates a pack-and-ship store. A competitor opens another pack-and-ship store across the street. The client doesn't want the competition. The client may even feel aggrieved based on what she regards as a quasi-moral but not legal objection. For example, she may say something like: "I've been in this location for twenty years. The newcomer is free-riding on my work by siphoning off customers with cut-rate prices." The lawyer's job is to explain to the client that the law does not forbid the opening of competing stores and, if possible, to chart a course of action that might nonetheless achieve the client's goals. Perhaps the competitor lacks some required permit or improperly disposes of toxic chemicals in violation of some regulatory scheme. The lawyer could contact the relevant enforcement authorities, thereby increasing the competitor's costs or even driving the competitor out of business. The lawyer will have thereby used the law to achieve the client's goals, even though the client's ultimate goals had nothing to do with the particular legal advantage taken.

This sort of dynamic operates in many contexts. Cause lawyers who oppose the death penalty in all circumstances might bring a case challenging a method of execution as posing an unacceptable risk of pain in violation of the Eighth Amendment. They might even think that the arguments they make actually justify the result, but that is not their main goal or their client's main goal. Their main goal is to delay execution as long as possible and to raise the cost (and therefore reduce the numbers) of executions.

Meanwhile, there is no requirement that a lawyer believe the arguments she makes. So long as there is sufficient support for the argument, it is perfectly acceptable to advance an argument that the lawyer personally finds unpersuasive, all things considered. This allowance figures into my own practice with respect to brief writing and signing. If I am asked to write or join an amicus brief of scholars, I will only do so if I truly believe in the arguments. However, if I am acting as a lawyer representing a client (whether pro bono or for a fee), I am comfortable making some arguments that I would ultimately reject as a scholar, so long as they fall within the bounds of reasonable disagreement, given the relevant legal materials.

Given the routine practice of lawyers coming up with legal justifications for courses of action their clients want to take for other reasons, why did the original team of DOJ lawyers apparently refuse to continue to do so for Trump? The answer is that the law sometimes but not always makes an actor's actual motives relevant. When it does so--as the SCOTUS majority held it does in the census case--then the client's motive is no longer simply about a legal argument but a question of fact. And lawyers have a professional legal duty not to misrepresent facts.

Under the ABA Model Rules of Professional Conduct on which state bar rules are at least loosely based, a lawyer cannot knowingly suborn perjury or otherwise make a false statement of fact. The relevant rule also forbids the making of a knowingly false statement of law, but an argument that the law supports some result is not a false statement of law merely because it does not reflect the lawyer's view of the best legal outcome, all things considered. By contrast, for a lawyer to sign her or his name to a document stating that now the real reason for adding the citizenship question to the census is to comply with the UN's recommendation or to enforce Section 2 of the Fourteenth Amendment or some other post-hoc rationalization would be to make a false statement of fact.

Thus, notwithstanding the role that lawyers frequently and legitimately play in identifying legal justifications for clients to engage in courses of conduct they wish to follow for other reasons, the DOJ lawyers who presumably refused to generate a new pretext for Trump, Ross, and Barr acted appropriately.

5 comments:

This post's theme might be extended to Mike's earlier post on the Jeffrey Epstein saga, which involved prosecutors and defense attorneys in working out a state of Florida sweetheart deal in lieu of federal charges. The state deal gave a "pass" to "co-conspirators" of Epstein. Was this mere legal boilerplate to protect "innocent" Johns, or were there specific "co-conspirators" that needed protection for political or other reasons? If so, did they have attorneys who were involved with the eventual deal, perhaps dealing through Epstein's defense counsel? Or might Epstein's defense counsel have indicated that a full blown trial of Epstein might reveal such co-conspirators? It is difficult separating political and wealth powers when it comes to justice. Did then US Attorney Acoste have information about the identity of some of the "co-conspirators"? What role might have private attorneys for possible "co-conspirators" played in working out the Florida deal? Might Epstein's defense counsel have leveraged potential disclosure of "co-conspirators" to work out a favorable deal for Epstein?

The legal profession has to do some reexamining of its rules of professional conduct.

Regarding the "pretext" aspect of the Census Con case, the attempted direction of AG Barr may lead the case back to SCOTUS, where SCOTUS might apply its own "pretext" to support Trump. Might this be another Bush v. Gore moment for SCOTUS?

By the way, kudos to plaintiffs' counsel who challenged the DOJ's change of attorneys. Perhaps their efforts will disclose the DOJ happenings since The Chief's opinion.

It's not just Rule 3.3, although that's obviously something lawyers have to think about. That rule is actually pretty narrow and doesn't impose a general obligation of candor. It just says you can't knowingly make false statements of law or fact. A different, and broader, ethical problem relates to the credibility of the lawyers who made arguments in the earlier proceedings, including (1) enforcing the VRA is the real reason for adding the citizenship question, and (2) July 1 really is the drop-dead date for resolving this question. If those lawyers continued representing the government after Trump directed them to find a new pretext, they would have no credibility. So what? one might say - lawyers make arguments all the time that they don't believe in. True, but in this case the lawyers did invest a certain amount of their personal "credibility capital" in the arguments they made. To argue something flatly in contradiction to what they argued earlier would make them look slippery and untrustworthy.

The relevant rules of professional conduct are therefore: Rule 1.1 - a lawyer has to represent a client competently, and in this case the prior commitments to a contradictory position would make it hard for these lawyers to provide competent representation. Rule 1.7(a)(2) - a lawyer cannot represent a client if there would be a material limitation on the representation created by a personal interest of the lawyer - here, in maintaining credibility before the tribunal and in the profession generally. Rule 3.1 - a lawyer cannot make an argument without a sufficient basis in law and fact - here, without adequate support for the proposition "the Secretary's real reason for including the question was X." That's getting close to Rule 3.3(a), I realize, but it's a different standard, related to the Fed. R. Civ. P. 11 for non-frivolous legal arguments.

If I were advising the lawyers in DOJ Federal Programs, I'd tell them they have a sufficient basis to seek to withdraw under Rule 1.16(a)(1) (representation will result in violation of the rules of professional conduct). The hitch is, they're required to seek the permission of the tribunal, and to comply with any local rules of the tribunal. That's what happened in the SDNY - they didn't comply with the court's local rule requiring a sufficient explanation of the reason for seeking withdrawal. Even if they did, however, it would still be within the court's discretion not to let them out, in which case they're required to stay in - see Rule 1.16(c).

There was a brief motion to withdraw as counsel (w/o reasons provided) in the case but Judge Furman said for nine of the eleven, there were not "satisfactory" reasons provided. (Two left the DOJ) Also, such change cannot cause unwarranted disruption. He also said that the Administration has to do more than assume that.

https://www.politico.com/f/?id=0000016b-d8c3-dfc2-a9ff-fae31b2a0001

As to the title of this commentary, note that multiple members or regular commentators (such as Shag) of this blog are lawyers, law professors, are involved in appellate matters (Prof. Dorf references from time to time his involvement in amicus briefs, for example) and/or were past members of the Justice Department (Eric Segall and Marty Lederman [comments] both were).

This adds context to the comments, including at time their tone. Prof. Segall has spoke of his disdain of AG Barr, e.g., and it was influenced by his personal experiences back in the day and so forth. People here deeply respect the law and government service.

(I note there is at least one commenter that popped up again recently that is currently in the Trump Administration.)

History repeats itself, apparently. As a Federal Programs lawyer assigned to work on a 2000 census case, I refused to sign a brief that was ethically and legally questionable. The issue presented had been litigated in the same court a decade earlier, and the government had lost. No facts distinguished our case. So I refused to sign the brief or make the argument. My Branch Director (a career DOJ lawyer) backed me up. This earned me a chewing out by VP Cheney's son-in-law, who had been appointed to a high-level DOJ position in the Civil Division. My suspicion then was that the argument was not "important to the nation," as the son-in-law put it, but politically important because if the government won the method of taking the census would have favored Republicans. As I say, history repeats . . .